Alec Rothrock, Englewood, is a shareholder in the law firm of Burns, Figa & Will, P.C., and a former Chair of the CBA Ethics Committee—(303) 796-2626, arothrock@bfw-law.com.

When a lawyer’s past conduct is scrutinized for ethics violations, a threshold issue may be which version of the Colorado Rules of Professional Conduct applies—the pre-2008 version or the substantially revised version effective January 1, 2008. As cross-border law practice becomes more common, it also may be necessary to determine which jurisdiction’s ethics rules apply to the conduct. This article addresses these choice of law considerations.

The issue of which version of the Colorado Rules of Professional Conduct (Rules) applies to a lawyer’s past conduct commonly arises in attorney discipline cases and in civil actions charging a lawyer with liability in tort predicated on a violation of duties coextensive with the Rules. In these cases, it also may be necessary to decide which jurisdiction’s set of ethics rules is applicable—as cross-border law practice has increased exponentially, so too has the need to determine which set of ethics rules applies to the conduct in question. Like the American Bar Association (ABA) Model Rule on which it is based, new Colorado Rule 8.5 is designed to avoid subjecting a lawyer to more than one set of ethics rules for the same conduct, even if the lawyer is subject to the disciplinary authority of more than one jurisdiction for having engaged in that conduct.

Specifically, this article addresses two questions:

1. Which Rules are applicable to conduct that occurred before the sweeping revision of the Rules effective January 1, 2008?

2. Which set of ethics rules is applicable when a lawyer is admitted to practice in, or practices in, another jurisdiction—for example a state or federal court in another state?

The answer to the first question is that the substantive ethics rules in effect at the time of a lawyer’s conduct apply to assess that conduct, but those few procedural rules found in the Rules apply retrospectively in their current form regardless of when the underlying conduct occurred. The answer to the second question is that Colorado now has a specific choice of law rule, which is designed to ensure that even if two or more licensing authorities have jurisdiction to regulate or punish the same lawyer conduct, the conduct will be judged by only one set of ethics rules.

The first question is important because lawyers need certainty about which rules apply to their past conduct, and it is unfair to judge conduct under standards that were not applicable when the conduct occurred. For example, a client’s verbal consent to a conflict of interest, obtained prior to January 1, 2008, remains valid even if the matter continues after that date, when the rules changed to require confirmation of client consent in writing. The lawyer need not obtain a new consent compliant with the new rule. On the other hand, there is no unfairness in applying procedural language or rules retrospectively, for example (1) a sentence in the introductory Scope section of the Rules that addresses the admissibility of evidence of certain Rules, and violations of them, in civil cases and, potentially, (2) Colo. RPC 8.5, governing choice of substantive law in a multijurisdictional context.

The second question is important for two reasons offered by a commentator.1 The first reason is that, in some instances, the choice of substantive law determines the outcome. For example, the payment and receipt of referral fees are permissible in some jurisdictions (Illinois) but impermissible in others (Colorado). Subtly, the choice of substantive ethics law may dictate the statute of limitations applicable to charges or claims based on those substantive rules.2 The second reason is that, as a practical matter, the choice of substantive law may influence the decision of which jurisdiction investigating the conduct might prosecute the matter. There may be significant differences between and among jurisdictions in terms of prosecutorial policy, resources, and consequences.

Temporal Choice of Law:
Old Rules Versus New Rules

For disciplinary or other purposes, to judge a lawyer’s conduct by a rule or version of a rule of professional conduct that was not in effect at the time of the conduct might be tantamount to an ex post facto law in violation of Colo. Const. art. II, § 11. It would be unfair to apply the new rule to the lawyer, unless the new rule was more lenient, in which case the lawyer might try to argue that the new rule simply clarifies what was implicit in the old rule. Be that as it may, a rule that makes a procedural change does not suffer from ex post facto infirmity. It may seem as though the Rules include no procedural rules, but there may well be a few.

Substantive Rules of Professional Conduct
are Prospective in Nature

The January 1, 2008 revisions to the Rules raised a question about which version of the rules applies to lawyer conduct—the pre-2008 version or the 2008 version. Since the Colorado Supreme Court adopted them in 1993, and continuing to the present time, the Rules have contained the following sentence:

The Rules presuppose that disciplinary assessment of a lawyer’s conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation.3

This sentence derived from the ABA Model Rules of Professional Conduct and has not changed since the adoption of those rules in the early 1980s.

No published decision in Colorado has interpreted this sentence or discussed the broader issue addressed here. However, the Massachusetts Court of Appeals interpreted the identical sentence to mean that "[d]isciplinary rules operate prospectively, not retroactively."4 Without reference to this language, courts in other states have reached the same conclusion in determining the applicable version of a rule of legal ethics.5

The principle that disciplinary rules operate prospectively and not retroactively is consistent with CRS § 2-4-202, which states that a statute is "presumed to be prospective in its operation."6 CRS § 2-4-202 also reflects a general principle of statutory construction, although the issue is more complex than this article allows.7

Section § 2-4-202 also is consistent with published disciplinary decisions issued by the Colorado Supreme Court in the aftermath of its 1993 adoption of the Rules to replace the Colorado Code of Professional Responsibility (Code). In those cases, the Court applied the ethics code in effect at the time of the conduct in question, and both codes if the conduct occurred both before and after the change.8 In several civil cases from other jurisdictions, courts have applied ethics rules prospectively.9

There is ostensibly contrary case authority in Illinois. In Dowd & Dowd, Ltd. v. Gleason,10 the Illinois Supreme Court refused to enforce a noncompetition clause in a law firm partnership agreement, because it reflected the violation of a rule of professional conduct that was not in effect when the parties signed the agreement. The court reasoned that the rule had retroactive effect insofar as the clause violated public policy. In Paul B. Episcope, Ltd. v. Law Offices of Campbell & Di Vincenzo,11 citing Dowd, the Illinois Court of Appeals refused to enforce a fee-division agreement between lawyers in different firms, because the agreement violated an ethics rule that was in effect at time of the civil litigation but not in effect when the lawyers entered into the agreement.12

It is possible to reconcile the Illinois cases with the principle that rules of professional conduct are to be applied prospectively. The Illinois courts refused to enforce the contracts because they violated a public policy that did not exist or at least had not been expressed at the time of their execution. There was no suggestion in either case that the lawyers had violated any rules of professional conduct. A disciplinary assessment of their conduct should have reached the conclusion that the lawyers engaged in no misconduct. On the other hand, the enforceability of contracts that violate a public policy that did not exist, or had not been expressed, at the time of their execution is a matter of contract law, not the law of legal ethics.

Waivers of conflicts of interest present an interesting application of "temporal" choice of law principles. In New York State Bar Association Committee on Professional Ethics (Ethics Committee) Opinion 829,13 a lawyer informed the Ethics Committee that he had obtained verbal consent to a conflict of interest before New York’s ethics rules changed to require the consent to be confirmed in writing. (Colorado made the same change.14) The lawyer asked the committee whether he needed to obtain a new consent that he would then confirm in writing.

The Ethics Committee concluded that the lawyer did not need to obtain a new consent. The original consent remained valid. Drawing on New York authority analogous to the Colorado authority discussed above, the Committee reasoned that unless the legislature has unequivocally expressed the contrary, statutes (as well as rules, presumably) are to be construed as being prospective in application. New York’s new rules did not make consents obtained under the old rules invalid.

In contrast, a nonrefundable retainer provision in an engagement agreement signed prior to In re Sather15 may well have been unenforceable after the decision as contrary to the public policy against nonrefundable retainers.16 Such a provision would not, however, have subjected to discipline the attorney who signed the engagement agreement. In fact, the Court in Sather did not discipline the respondent lawyer for including a nonrefundable retainer in his engagement agreement.17

It is clear, then, that the version of the Rules in effect at the time of a lawyer’s conduct should govern the ethical propriety of that conduct. Some Rules will not have changed from one version to another, and conduct spanning the effective period of different Rules may be subject to both Rules.18

However, in some cases, the difference between Rules may be important. As discussed above, a lawyer who, prior to 2008, obtained verbal client consent to a conflict of interest, in compliance with the then-existing version of Colo. RPC 1.7, would not violate that Rule if he or she did not confirm the consent in writing after January 1, 2008, as required by the current version of the Rule. The consent was valid at the time the client gave it, and it did not become invalid at the stroke of midnight on January 1, 2008.

By the same token, for purposes of assessing the disciplinary consequences of a lawyer’s conduct, a reckless state of mind would satisfy the knowledge element found in many Rules if the conduct occurred prior to 2008. A reckless state of mind would not satisfy that element for conduct occurring on or after January 1, 2008. In the revised Rules, the Colorado Supreme Court expressly abrogated its prior interpretation of the knowledge element as including reckless conduct, thereby adhering to the actual knowledge standard stated among the defined terms in Colo. RPC 1.0.19

Procedural Rules are Retrospective in Nature

The principle of prospective application of statutes and rules does not apply to the construction of statutes and rules effecting a change of procedure, as opposed to a change of substance.20 Procedural statutes are applied retrospectively instead of prospectively.21

There may be only a few procedural rules in the Rules.22 One such "rule" is the provision quoted above from the introductory "Scope" section of the Rules that states, in effect, that a lawyer’s conduct is to be judged by the version of the Rules in effect at the time of the conduct. This is a poor example, however, because that sentence has never changed, either in the Colorado Rules or the ABA Model Rules.

A better example is an altogether new sentence in the "Scope" section. This sentence appears at the end of a paragraph, stating that a violation of the Rules does not give rise to a civil cause of action and otherwise emphasizing the ostensible inapplicability of the Rules, and violations of them, in civil cases. The sentence states:

Nevertheless, [because] the Rules do establish standards of conduct by lawyers, in appropriate cases, a lawyer’s violation of a Rule may be evidence of breach of the applicable standard of conduct.23

Except for the phrase "in appropriate cases," this sentence repeats verbatim a sentence added to the Scope section in 2002 among the "Ethics 2000" revisions to the ABA Model Rules.24 The ABA Reporter’s Explanation of Changes states that this and related changes

reflect the decisions of courts on the relationship between these Rules and causes of action against a lawyer, including the admissibility of evidence of violation of a Rule in appropriate cases.25

In its report to the Court, the Colorado Supreme Court committee that studied the Ethics 2000 changes and recommended an adaptation of them to the Court stated that, to its knowledge, "the Colorado appellate courts have not spoken on this issue"26 and that it "sides with those courts and commentators that hold that ethics rules establish standards of conduct for lawyers."27 The new sentence "recognizes the possibility that a court will hold such evidence relevant and admissible in non-disciplinary proceedings—but it does not require a court to do so."28 The committee’s report goes on to say that debate within the committee regarding this sentence was "heated"—as reflected in separate position papers accompanying the report—and that the committee added the phrase "in appropriate cases" so that the sentence would not be read as "automatically rendering a rules violation relevant in a civil action."29

The phrase "in appropriate cases" clarifies that the word "may" in that sentence is used in the sense of conveying the notion of possibility, as in the possibility that courts will admit such evidence. The word "may" therefore is not used in the alternative sense of conveying permission, which would have made the sentence a free-standing rule of evidence located in a most unlikely place. The effect of the new sentence, together with other changes in the same paragraph, is to cancel the contrary evidentiary inference of the prior version of the paragraph and confirm that the issue of admissibility is governed not by the Rules of Professional Conduct but by the Rules of Evidence and other law.

To whatever degree it influences the admissibility of evidence, this quasi-rule of evidence should be applied in an existing civil action even if the underlying conduct is subject to a prior version of the Rules. Generally, rules of evidence are applied retroactively, because they are considered to be procedural in nature.30

Another rule that appears to be procedural, and therefore to be applied retroactively, is Colo. RPC 8.5. Colo. RPC 8.5 governs choice of law as it applies to the application of the rules of ethics to a lawyer’s conduct. The current version of Colo. RPC 8.5 is vastly different from the pre-2008 version, which merely noted in a Comment the potential applicability of conflict of laws principles in the event of a difference between the ethics rules of two (or more) jurisdictions.31 One commentator observed that Rule 8.5 "belong[s] in a compendium of disciplinary procedures, not in a code of ethics."32

In a District of Columbia (DC) attorney discipline case, the respondent lawyer argued that DC’s new Rule 8.5 applied retroactively and made Arkansas and not DC ethics rules applicable to his alleged misconduct. Bar counsel opposed that argument, asserting that DC Rule 8.5 did not have retroactive effect and, apparently, that the application of prior conflict of laws principles made DC’s ethics rules applicable to the alleged misconduct. The DC Court of Appeals declined to decide the question, reasoning that the underlying ethics rules in question were the same in DC as they were in Arkansas.33 If Colo. RPC 8.5 is a rule of procedure, the current version of that rule should determine which jurisdiction’s ethics rules are applicable to assess a lawyer’s conduct, even if the propriety of the conduct itself is governed by a prior version of Colorado’s or another jurisdiction’s ethics rules.

Substantive Choice of Law:
Multijurisdictional Practice

Colo. RPC 8.5 is essentially identical to ABA Model Rule 8.5.34 As implied in its title, "Disciplinary Authority; Choice of Law," Colo. RPC 8.5 addresses two distinct issues: (1) which jurisdiction has authority over a lawyer’s conduct; and (2) which jurisdiction’s ethics rules are applicable to a lawyer’s past or prospective conduct.

Disciplinary Authority

As stated in Colo. RPC 8.5(a), two or more jurisdictions may have concurrent authority to discipline a lawyer for the same conduct,35 except perhaps when a state impinges on the exclusive authority of a federal court to regulate attorneys appearing before it.36 The choice of law principles set forth in Colo. RPC 8.5(b) help to ensure that a lawyer’s conduct will be assessed under one set of ethics rules, regardless of how many or which jurisdictions have authority over it.37 "The goal of [Rule 8.5] is to insure that any particular conduct of a lawyer should be subject to only one set of rules."38

Lawyers subject to the disciplinary authority of only one jurisdiction are subject only to the ethical obligations of that jurisdiction, regardless of where the conduct occurred.39 Not infrequently, however, lawyers are subject to the disciplinary authority of more than one jurisdiction. As stated in a Comment to Colo. RPC 8.5:

The lawyer may be licensed to practice in more than one jurisdiction with differing rules, or may be admitted to practice before a particular court with rules that differ from those of the jurisdiction or jurisdictions in which the lawyer is licensed to practice. Additionally, the lawyer’s conduct may involve significant contacts with more than one jurisdiction.40

Lawyers also may be subject to ethics rules by virtue of their conduct alone. For example, out-of-state lawyers who practice law in Colorado without appearing in a Colorado court are subject to the Colorado Rules.41

Choice of Law Determination

Especially with the widespread adoption of the ABA Model Rules, there often is no difference between the applicable substantive rules of two jurisdictions and, hence, no conflict.42 Under general choice of law principles, this is sometimes known as a "false conflict."43 When the substantive ethics rules differ, however, choice of law may be critical for purposes of attorney discipline, the assessment of proposed conduct, civil liability, exclusion of evidence, sanctions, disqualification, and any other areas requiring the application of ethics rules.44

The following criteria guide the choice of law determination:

1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and

2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct; a lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.45

Choice of law regarding litigation-related conduct ordinarily should be straightforward,46 unless perhaps there is a question about whether the matter was pending before a "tribunal," which includes an arbitration forum,47 or was sufficiently "in connection with" a matter pending before one. As an example of the latter issue, in Apple Corps Ltd. v. International Collectors Society,48 a federal court in New Jersey, construing a prior, similar version of Rule 8.5(b)(1), concluded that the alleged misconduct of the plaintiffs’ lawyers would be judged by the New Jersey Rules of Professional Conduct and not the New York Code of Professional Responsibility where the plaintiffs’ lawyers principally practiced. The alleged misconduct arose from activities surrounding the enforcement of a Consent Order in the case. The court held that the conduct had occurred "in connection with" the case, therefore making it subject to the New Jersey ethics rules followed by that tribunal, even though the case had been dismissed at the time of the conduct.49

Pre-litigation conduct would be analyzed under the choice of law principles set forth in subsection (b)(2), not (b)(1), because the former applies only to conduct in connection with a matter that is "pending" before a tribunal.50 For example, pre-litigation solicitation of prospective clients or contact with represented parties, as well as client fee agreements and fee-division agreements between lawyers in different firms, would not be assessed under the ethics rules of the future tribunal if the conduct or its predominant effect occurred in another jurisdiction.51 As for conduct that spans both the pre-filing and post-filing periods, such as conflicts of interest and modifications of pre-filing fee agreements, one commentator argues that it would be illogical to subject the conduct to different ethics rules depending on the arbitrary fact of their timing.52 She suggests that the rules applicable to the pre-filing conduct should continue to apply.

Rule 8.5(b)(2) is more fact-intensive. It applies to any conduct that is not "in connection with a matter pending before a tribunal."53 The threshold determination is, therefore, to identify the "jurisdiction in which the lawyer’s conduct occurred." The succeeding clause, stated in the alternative, means that even if the conduct occurred "in" a particular jurisdiction, the ethics rules of a different jurisdiction apply if the "predominant effect" of the conduct was in that jurisdiction.

Determining whether a lawyer’s conduct occurred in a particular jurisdiction can get rather abstract, much as it can when determining what constitutes unauthorized practice of law by an out-of-state lawyer.54 The location of the lawyer at the time of the conduct is not likely to be dispositive or even very important. For example, the Delaware Supreme Court was unimpressed by a Pennsylvania lawyer’s argument that she had not engaged in the unauthorized practice of personal injury law "in Delaware," for purposes of Rule 8.5(b)(2), because her office was located in Pennsylvania. The court stated that "physical presence is not required to establish that a person is providing, or offering to provide, legal services in this state."55

On the other hand, the court attached significance to the fact that the Pennsylvania lawyer accepted new clients who were (1) Delaware residents (2) involved in automobile accidents in Delaware and (3) seeking recovery under Delaware insurance policies.56 The fact that she engaged Delaware counsel to handle any necessary Delaware litigation did not negate the fact that her "regular representation of Delaware clients constituted the practice of law ‘in Delaware’ for purposes of Rule 8.5."57

A Minnesota case, In re Overboe,58 lumps together the ostensibly distinct elements of (1) the jurisdiction in which the lawyer’s conduct occurred and (2) the "predominant effect" of the conduct. "Therefore, the question for each allegation of misconduct is: Where did the conduct and its predominant effect occur?"59

The case involved a lawyer who practiced in both North Dakota and Minnesota. His client trust accounts and office were located in North Dakota. Minnesota Bar counsel charged him with disguising a personal account as a trust account to shelter personal funds from creditors, including one particular judgment creditor. Bar counsel also charged him with making misrepresentations to Bar counsel during the disciplinary investigation concerning the purpose and nature of the trust account.

The Minnesota Supreme Court concluded that North Dakota ethics rules would apply to the trust account charges. The trust account was located in North Dakota, the judgment against him had been entered in North Dakota, no Minnesota (or North Dakota) clients had been harmed, and the use of the account had not otherwise had "any predominant effects in Minnesota."60 In contrast:

regardless of where the conduct that is being investigated occurred, any conduct constituting misrepresentations to and noncooperation with [Minnesota Bar counsel] has its predominant effects in Minnesota. We therefore conclude that as to [the respondent lawyer’s] alleged misrepresentations to and noncooperation with [Bar counsel], the Minnesota professional conduct rules apply.61

Finally, Rule 8.5(b)(2) states that a lawyer "shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur."62 This comment to this rule adds the following:

When a lawyer’s conduct involves significant contacts with more than one jurisdiction, it may not be clear whether the predominant effect of the lawyer’s conduct will occur in a jurisdiction other than the one in which the conduct occurred. [As] long as the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect will occur, the lawyer shall not be subject to discipline under this Rule.63

The Pennsylvania lawyer in the Delaware case discussed above argued that even if she did practice law in Delaware, she reasonably believed that the predominant effect of her work was in Pennsylvania. Therefore, according to her theory, Delaware should not discipline her, because she conformed her conduct to Pennsylvania’s ethics rules.64

This argument likewise failed to persuade the Delaware Supreme Court. The Pennsylvania lawyer had pointed to no testimony to support a "reasonable belief" on her part that the predominant effect of her representation of Delaware clients was in Pennsylvania. Even if she held this belief, her knowing violation of a cease and desist order, as found by the hearing board below, made that belief unreasonable.65

Rule 8.5 organizes the choice of substantive ethics rules in a logical fashion, to the end that however many disciplinary authorities possess jurisdiction to regulate (for example, to discipline, suspend, or disbar) a lawyer, the lawyer is required to defend against alleged violations of only one set of ethics rules. Specific conduct should be judged by one set of ethics rules, even if—as discovered by Mr. Overboe of the North Dakota and Minnesota Bars—the application of Rule 8.5 results in the application of different jurisdictions’ ethics rules to different conduct of the same lawyer. It is conceivable that different jurisdictions having concurrent authority over a lawyer’s conduct will subject that conduct to different ethics rules—for example, if they have different choice of law rules or if they interpret those rules differently—but Rule 8.5 is designed to avoid such circumstances.66

For conduct in connection with a litigation matter, Rule 8.5 provides for the bright-line application of the ethics rules adopted by the tribunal. Whether certain conduct is sufficiently "in connection with" a matter pending before a tribunal may be a fact-intensive question.67 The assessment of conduct not occurring in connection with a matter pending before a tribunal will depend, in the first instance, on the facts surrounding where the lawyer’s conduct occurred. If, despite the occurrence of a lawyer’s conduct in one jurisdiction, the "predominant effect" of that conduct occurred in a different jurisdiction, the ethics rules of the latter prevail. A lawyer’s "reasonable belief" about the jurisdiction with the predominant effect may, for disciplinary purposes, dictate the application of that jurisdiction’s ethics rules even if that jurisdiction is not where the conduct or its predominant effect occurred. Presumably, the lawyer must form the belief before engaging in the conduct in question and show some evidence of pre-conduct analysis under Rule 8.5 to establish that belief before it is subjected to the objective test of reasonableness.68

Conclusion

Over time, the importance of the applicability of the "old" versus the "new" Rules will diminish. At some point, it will be rare when any conduct is governed by the pre-January 1, 2008 version of the Rules. In the meantime, lawyers should take comfort in knowing that the Rules will not operate ex post facto.

In contrast, the importance of the choice of substantive law is likely to increase over time. As they have been doing for many years already, lawyers increasingly practice across state lines and time zones. Being subject to another jurisdiction’s ethics rules does not necessarily depend on whether a lawyer is officially licensed in that jurisdiction, such as a lawyer who gains admission pro hac vice in a particular case69 or who obtains a limited form of licensure to represent a single client.70 As in Colorado, some jurisdictions have rules subjecting out-of-state lawyers to their ethics rules based on conduct alone. In these instances, the widespread adoption of Model Rule 8.5 should enable lawyers to predict with near certainty which of perhaps several potentially applicable and potentially inconsistent sets of ethics rules will guide their conduct.

2. See CRS § 13-82-104(1)(a) ("if a claim is substantively based . . . [u]pon the law of one other state, the limitation period of that state applies. . . .").

3. Preamble and Scope, Scope [19], Colo. RPC (2008) (emphasis added).

4. In re Estate of Southwick, 850 N.E.2d 604, 609 (Mass.App. 2006).

5. See Comparato v. Schait, 848 A.2d 770, 774, 777 (N.J. 2004) (affirming denial of disqualification motion premised on participation of presiding judge’s former law clerk in representation of defendant, in alleged violation of version of New Jersey equivalent of Colo. RPC 1.12(a) in effect at time of conduct in question); First Small Business Inv. Co. of California v. Intercapital Corp. of Oregon, 738 P.2d 263, 269-70 (Wash. 1987) (reversing imputed disqualification of law firm based on Washington equivalent of Colo.RPC 1.10 in effect at time of conduct, refusing to give retroactive effect to new Rule 1.10 in contrast to case where legislative intent to give statute retroactive effect was clear).

9. E.g., Southwick, supra note 4 at 609; Comparato, supra note 5 at 774; First Small Business Inv. Co., supra note 5 at 269-70. See also Veasey, "The Ethical and Professional Responsibilities of the Lawyer for the Corporation in Responding to Fraudulent Conduct by Corporate Agents," 70 Tenn. L.Rev. 1, 20 (Fall 2002), citing ¶ [19] of Scope section of American Bar Association (ABA) Model Rules, which includes above-italicized sentence, to support statement that "it is the nature of the Model Rules that they are disciplinary rules to be enforced by state regulators once adopted by state supreme courts" (the author was chair of the ABA Ethics 2000 Commission).

12. Colorado courts have refused to enforce provisions of an engagement agreement on the ground that they violated the public policy expressed in particular rules of professional conduct. E.g., Jones v. Feiger, Collison & Killmer, 903 P.2d 27, 34 (Colo.App. 1994) (refusing to enforce provision in engagement agreement that impaired client’s right to make settlement decisions, as set forth in Colo.RPC 1.2(a)), rev’d on other grounds 926 P.2d 1244 (Colo. 1996).

13. New York State Bar Association Committee on Professional Ethics Opinion 829 (April 29, 2009).

34. The only substantive difference (the Colorado version also omits some subtitles present in the ABA Comment) is the additional Colorado Comment paragraph:

[1A] The second sentence of Rule 8.5(a) does not preclude prosecution for the unauthorized practice of law of a lawyer who is not admitted in this jurisdiction, and who does not comply with C.R.C.P. 220, C.R.C.P. 221, C.R.C.P. 221.1, or C.R.C.P. 222, but who provides or offers to provide any legal services in this jurisdiction.

Colo. RPC 8.5 Cmt. [1A].

35. Colo. RPC 8.5(a). See also C.R.C.P. 251.1(b) (Colorado-licensed attorneys are subject to disciplinary and disability jurisdiction of Supreme Court in all matters relating to the practice of law, as are attorneys practicing in Colorado under C.R.C.P. 220, 221, and 221.1 or who are certified to represent a single client pursuant to C.R.C.P. 222 when practicing law pursuant to those rules).

36. See Sperry v. State of Florida, 373 U.S. 379 (1963) (enjoining Florida Bar from proscribing Florida lawyer’s practice in patent office); Winterrowd v. American Gen. Annuity Ins. Co., 556 F.3d 815, 820 (9th Cir. 2009) (reversing denial of statutory attorney fees to lawyer not admitted in California for work ostensibly in violation of California state law, because lawyer’s services took place in federal court); Surrick v. Killion, 449 F.3d 520, 529-34 (3d Cir. 2006) (authorizing attorney to practice law in federal court notwithstanding Pennsylvania Supreme Court’s order of contempt for doing so); In re Landerman, 7 F.Supp.2d 1202, 1203 (D.Utah 1998). (Utah Supreme Court had no authority over right to practice in federal court). Cf. Jacob, "Professional Ethics Before the USPTO: A Discussion for Beginners," 16 No. 2 The Professional Lawyer 22, 24 (2005) ("Where the intellectual property practitioner is also licensed to practice before a state or territorial bar his or her duties are governed by that state or territory’s grievance committee as well as the USPTO."), citing Sperry, supra note 36 at 402-03 and Schindler v. Finnerty, 74 F.Supp.2d 253, 261 (E.D.N.Y. 1999). See generally Zacharias and Green, "Federal Court Authority to Regulate Lawyers: A Practice in Search of a Theory," 56 Vand. L.Rev. 1303 (Oct. 2003).

37. "If two admitting jurisdictions were to proceed against a lawyer for the same conduct, they should, applying this Rule, identify the same governing ethics rules. They should take all appropriate steps to see that they do apply the same rule to the same conduct, and in all events should avoid proceeding against a lawyer on the basis of two inconsistent rules." Colo. RPC 8.5 Cmt. [6]. Rule 8.5 "expressly provides that the enacting jurisdiction, under certain circumstances, will apply to the conduct of its own lawyers the conduct rules of another state. . . . That relinquishment of authority to apply forum law may well make sense, when the favor is returned by other states that have adopted the same choice-of-law rule and apply under similar circumstances in their courts the conduct rules of the original jurisdiction." Moulton, "Federalism and Choice of Law in the Regulation of Legal Ethics," 82 Minn. L.Rev. 73, 160-61 (Nov. 1997) (emphasis in original).

38. In re Marks, 665 N.W.2d 836, 846 (Wisc. 2003), quoting Rotunda, Professional Responsibility: A Student’s Guide 735 (2001). See Colo. RPC 8.5 Cmt. [3] (Rule 8.5 takes the approach of "providing that any particular conduct of a lawyer shall be subject to only one set of rules of professional conduct").

42. See Schindelar, supra note 31 at 1146-47 and n.3 (Colo. 1993) (disciplining lawyer admitted to practice in Utah and Colorado for conduct that occurred in Utah, but declining to decide which set of ethics rules was applicable to the conduct, because the relevant rules were identical in each state); Slaughter, supra note 33 at 441 n.3 (D.C. 2007) (declining to address choice of law argument in attorney discipline case where there was no substantive difference between ethics rules of two jurisdictions).

44. One commentator provides an interesting discussion of the disparities among state rules governing the confidentiality of information relating to a representation, Rule 1.6. See Comment, "The Law of Choice: Implementation of ABA Model Rule 8.5," 30 J. Legal Prof. 173, 174-77 (2005-06).

45. Colo. RPC 8.5(b).

46. E.g., In re Ponds, 888 A.2d 234, 235 and n.1 (D.C. 2005) (applying Rule 8.5(b) to require application of Maryland Rules of Professional Conduct with respect to conduct of lawyer in failing to withdraw from criminal defense representation despite conflict of interest created by client’s assertion that he should be permitted to withdraw guilty plea because his lawyer, the respondent, coerced him into it); In re Marks, 665 N.W.2d 836, 846 (Wis. 2003) (Wisconsin Bar counsel had authority to prosecute Wisconsin lawyer for violation of Michigan ethics rules based on conduct that occurred in connection with Michigan case).

47. See Colo. RPC 1.0(m) ("tribunal" is a "court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity"). For example, alleged misrepresentations in an application to the U.S. Patent and Trademark Office (PTO) probably would be subject to Rule 8.5(b)(2) and not Rule 8.5(b)(1), because the PTO is not a "tribunal." See ABA Formal Opinion 93-375, "The Lawyer’s Obligation to Disclose Information Adverse to the Client in the Context of a Bank Examination" (Aug. 6, 1993) (in context of applicability of rules of professional conduct other than Rule 8.5, PTO is not a "tribunal" because application to PTO for a patent is "a substantially nonadjudicatory proceeding"), quoting Wolfram, Modern Legal Ethics § 12.6.5 (1986).

50. See Colo. RPC 8.5 Cmt. [4] ("conduct in anticipation of a proceeding not yet pending before a tribunal" is subject to subsection (b)(2)).

51. See id. ("In the case of conduct in anticipation of a proceeding that is likely to be before a tribunal, the predominant effect of such conduct could be where the conduct occurred, where the tribunal sits or in another jurisdiction."); Moore, "Choice of Law for Professional Responsibility Issues in Aggregate Litigation," 14 Roger Williams L.Rev. 73, 78-79 (Winter 2009), citing the foregoing examples and implicitly concluding applicability of subsection (b)(2) to them.

62. Colo. RPC 8.5(b)(2). The absence of a corresponding "reasonable belief" provision in subsection (b)(1) of ABA Model Rule 8.5 appears to have been an oversight. Moore, supra note 51 at 83 and n.43.

63. Colo. RPC 8.5(b)(2) Cmt. [5]. A lawyer’s "reasonable belief" in the applicability of a particular jurisdiction’s ethics rules may be a defense to a subsequent disciplinary charge, but presumably the remainder of Rule 8.5 and not the lawyer’s "reasonable belief" would govern the choice of ethics rules in a nondisciplinary setting, such as a motion to disqualify or the enforceability of a fee arrangement.

64. Tonwe, supra note 55 at 778.

65. Id. at 778-79.

66. Daynard, supra note 39 at 18-19 (noting that substantive law of five relevant jurisdictions was not clear but that all of them follow a substantially similar version of Rule 8.5).

67. See Moore, supra note 51 at 78 (referring to differing judicial interpretations of the phrase in prior form of Rule 8.5).